Tips for Curbing FMLA Intermittent Leave Abuse

In order to curb FMLA abuse and abuse of intermittent leave, the employer must understand the rights and limits imposed on an employee by the FMLA. The following is an explanation of some of the circumstances under which intermittent leave is allowed by the FMLA and tips for managing employee intermittent leave in those circumstances.

The FMLA allows employees to take intermittent or reduced schedule leave under the following circumstances:

1. Medical Need. The medical need must be one that is best accommodated through an intermittent or reduced leave schedule only when medically necessary. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness.

Tip: One of the most powerful tools for managing intermittent leave and controlling abuse is the initial certification of such leave. In order to manage intermittent leave, we suggest that supervisors or other individuals charged with managing leave be vigilant in requiring that the employee requesting intermittent leave provide medical certification of the specific need for intermittent leave. DOL medical certification forms can be found in the Forms and Policies section of your manual, BLR’s Family and Medical Leave Act Compliance Guide.

Note that if an employer is going to require medical certifications, it is required to provide the employee with written notice of such a requirement, and the consequences of failing to provide requested medical certification. This notice may be given in the form of DOL’s “Notice of Eligibility and Rights & Responsibilities” (Form WH-381, Part B) or a similar document provided by the employer.

2. Periodic Treatment by a Healthcare Provider. Intermittent leave is allowed when required for treatment by a healthcare provider periodically, rather than for one continuous period of time. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of 6 months, such as for chemotherapy.

Tip: Again, medical certification is the key to curbing intermittent leave abuse in cases of periodic treatment. DOL’s medical certification forms enable employers to specifically ask the employee’s healthcare provider about:

• Intermittent/reduced schedule leave for planned treatment and why there is medical necessity for leave, and estimate of dates and duration of treatment/recovery periods.
• Likelihood of unforeseeable episodes of incapacity, why there is medical necessity for leave, and estimate of frequency and duration of episodes of incapacity.
• Continuing treatment, the schedule of such treatment, whether episodic flare-ups are anticipated, the frequency of those flare-ups, and whether the employee will be absent from work during those flare-ups.

The instructions on the medical certification forms specifically direct healthcare practitioners to estimate in specific terms the frequency and duration of the condition in terms of times per week or month, and hours or days per episode. Answers of an indeterminate nature may be deemed insufficient and require the employee to secure certification.

3. Chronic Serious Health Conditions/Serious Illness or Injury. Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember, even if he or she does not receive treatment by a healthcare provider.

Tip: In cases where the health condition continues for an extended period of time, remember that medical recertification is permitted every 30 days, unless the employee requests an extension of leave; the circumstances described by the previous certification have changed significantly; or the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. In these circumstances, recertification may be requested in time periods of less than 30 days.

In all cases, an employer may request a recertification of a medical condition every 6 months in connection with an absence by the employee.

Accordingly, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of 6 months (e.g., for a lifetime condition), the employer would be permitted to request recertification every 6 months in connection with an absence.

4. Pregnant Employees. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness.

Tip>: Curbing abuse of intermittent leave for pregnant employees can be difficult due to the permissive approach taken by DOL to FMLA leave during pregnancy. Many courts have noted that pregnancy-related conditions are treated differently under the FMLA than other medical conditions, and have declined to require employees to provide medical documentation that morning sickness and other pregnancy-related conditions are incapacitating.